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Sarah Gordon Education. (2012) Book TV at the University of Pennsylvania Sarah Gordon, 'The Spirit of the Law Religious Voices and the Constitution in Modern America.'

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  CSPAN    Book TV    Sarah Gordon  Education.  (2012) Book TV at the  
   University of Pennsylvania Sarah Gordon, 'The Spirit of the Law...  

    January 20, 2013
    8:30 - 8:59pm EST  

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>> look for these titles in bookstores this coming week, and watch for the authors in the near future on booktv and on booktv.org. >> now on booktv, sarah gordon talks about religious cases in u.s. history that have transformed the laws of the country and illuminated protections afforded to religion in the u.s. constitution. this interview, part of booktv's college series, was recorded at the university of pennsylvania in philadelphia. it's about 20 minutes. >> host: university of pennsylvania professor sarah gordon, "the spirit of the law" is her most recent book. what do you mean when you talk about the old constitutional world and the new constitutional world when it comes to religion? >> guest: well, for most of our nation's history, it was the states rather than federal government that controlled
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access to religious worship, the rights of religious organizations and so on. and in the early decades of the 20th century, that began to shift as the supreme court applied the national constitutional establishment and free exercise clauses of the first amendment against the states sort of centralizing debates about religion. >> host: but if the states had the control, we had it written into our constitution, freedom of religion. >> guest: we did, indeed. but the first amendment begins "congress shall enact no law." so it was addressed only to the national government. >> host: were there restrictions by different states on religion? >> guest: oh, yes, there were. several states had religious establishments. most states limited the amount of property a religious organization could own. some taxed religious property. others banned given groups' practices. i'm thinking, for example,
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eventually various states in the southwest banning polygamy, for example. >> host: so when it came to massachusetts, talk about massachusetts or pennsylvania. of we're here in pennsylvania, as a case study of states regulating religion. >> guest: sure. pennsylvania, for example, had an active blasphemy law which we would nowty of as -- now think of of as starkly unconstitutional. and the last case, um, that was brought, the last criminal prosecution under blasphemy law was actually brought in the early 1970s kind of by accident against someone who had a sign in his window saying something like "wanted: radical carpenter speaks to crowds preaching peace." and, on, this person meant jesus, but someone walking past thought it blasphemous and complained. the american civil liberties
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union got involved pretty quickly, and the prosecution was dropped. more recently, the, a film company own or tried to name -- owner tried to name his company i choose hell productions. and was denied under, denied in corporation under the state's incorporation laws because it was a blasphemous title for the company. and that, too, eventually was dismissed. >> host: professor gordon, why did it start to change in the early 20th century? >> guest: i think for several different reasons. one especially with the growth of the federal government in the new deal era. the other really was that the, um, the embrace of migration and pluralism, um, immigration began to cease a little bit after the restrictive immigration acts of the early 20th century, and then
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the new deal forced so many people on to the move. looking for work, um, having much greater contact with government. and the expansion of government power really highlighted the friction between a bigger government and the lives of believers. so there was a lot more attention. >> host: you write about the salvation army in "the spirit of the law." what's the role of the salvation army in changing religious laws in america, i guess? >> guest: well, the salvation army which many people don't realize is an evangelical religious group not just a group that, you know, rings bells outside department stores in the christmas season. the salvation army believed in what they called the cathedral of the open air and would go into areas, especially impoverished areas, and have
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parades and make lots of noise with brass bands and similar pals and -- cymbals and loud preaching trying to attract especially the urban poor back into religious life. this came up against requirements of many cities that any parade be permitted, for example. and the salvation army made it a practice not to apply for permits and to be arrested often playing their instruments on the way into the cell. and challenging these laws as anti-religious. and they won a lot of them. they also lost a lot of them, so they kind of destabilized the law of the states by challenging these restrictions. they never really made it to the supreme court of the united states, though, because the states were still in power. >> host: professor gordon, when did the first major religious case come before the supreme court?
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>> guest: cases from the federal territories had come in the 19th century via especially utah, questions of polygamy. but from the states the really major cases made it to the supreme court in the late 1930s and early 1940s, really that new deal era. finish and they tended not -- and they tended not so much to be the salvation army, but the jehovah's witnesses who also caused a lot of trouble. >> host: and what was one of those cases? walk us through it. >> guest: well, a very interesting case called cantwell against connecticut involved a group of witnesses who had gone into a catholic neighborhood in new haven on a sunday morning and began playing anti-catholic records on portable phonographs and distributing literature, and they were arrested for disturbing the peace and preaching without a permit and
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appealed their case all the way to the supreme court. which said that because connecticut said, well, individual city administrators would decide what a valid program was for religious organizations and would allow them or not onto the streets, they said that allows too much discretion by the state government, and they applied for the first time part of that first amendment -- this time the free exercise clause -- as against the state of connecticut and overturned their law that allowed, um, city officials to license or not as they saw fit. >> host: and did that lead to any nationwide movements, or was it a well publicized case at the time? >> guest: it was a relatively well publicized case. the really big movements came when jehovah's witnesses again challenged laws requiring school children to salute the flag every morning, to say the pledge
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of allegiance. and at first today lost when they got to the supreme court -- at first they lost when they got to the supreme court. and in 1940 they lost in a big case, um, that got a lot of anticipation. and after -- attention. and after that violence broke out against witnesses all across the country, and three years later the supreme court changed its mind. and said, you know, we may be interested in patriotism and national unity, but not by beating up school children. >> host: and so today are school children -- because most classes begin with the pledge of allegiance. >> guest: they do, indeed. >> host: if a child wants to sit during that, can a child sit legally? >> guest: indeed, they are constitutionally protected in their right not to have to say the pledge of allegiance, yes. >> host: "the spirit of the law," tim and beverly he hay. who are they and why do they occupy a good portion of your book? >> guest: well, tim and beverly lehay are less well known than they should be.
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they actually were involved in very important religious movements from the 1960s through the very late 1990s. they were part of a resurgent evangelical culture. they, like so many other southern evangelicals, migrated to california, started megachurches, educational institutions and eventually became deeply involved in politics. beverly lehay who is a particular interest of mine in this book founded a group called conservative women for america which still claims to be the largest women's political organization in the united states, and she based her organization on five spiritual principles; the bible, the family, patriotism, the sanctity of marriage, the sanctity of life. and she began to litigate arguing that religious parents should have more control, for
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example, over what their children were taught in school, arguing that, um, the era, the equal rights amendment for women, was a violation of the fundamental order of things and winning many of these cases. >> host: did you interview her for your book? >> guest: i did not. she actually lives in seclusion now. she's very -- she retired about almost 15 years ago now and lives, um, in california again. >> host: somebody you would have liked to have talked to? >> guest: i would very much like to talk to her. and one of the things that i think is really important is that an organization like hers which was so involved, so foundational to conservative women's political activism, if papers are not deposited anywhere, they are not available to be read. other women, phyllis schlafly,
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who headed up a much smaller organization talks to everybody. and really someone like beverly lehay and concerned women for america deserves substantially more attention and for posterity should deposit their papers somewhere where scholars can read and learn from them. >> host: sarah gordon is a professor of law and a professor of history here at the university of pennsylvania. this is her most recent book, "the submitter of the law: religious voices in the constitution in modern america," harvard university press. she's also the author of "the mormon question," and you've referred to polygamy a couple times in our short discussion here. was that the issue about the mormons that really kind of got under people's skin? >> guest: it was the most prominent one. there were others. and in some ways if you think, say, of questions of access to
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public places for religious speech and life as a key to the 20th century, in the 19th century the really bigging question was -- big question was would mormons be allowed to redefine marriage for themselves and control the legal system enough so that polygamy would be recognized and protected as a valid form of marriage by the secular legal system, not just by the church itself? >> host: so are there parallels to the gay marriage debate of today? >> guest: there have been substantial parallels. one of the key issues for mormon apologists as well as for their opponents was the question of statehood for utah. it became pretty clear early on in american history that states
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have substantial control over marriage within their borders. as we're seeing being fought out in the marriage equality debates today. and utah pushed again and again for statehood and was denied again and again in large part because of this question of polygamy. the federal government had much more or control over territorial governments than it does -- did or does -- over state government. so, yes, there's a big issue about how much control states have over marriage, was polygamy foundational in lessening that control? at the time the debate was, no, it wasn't. it was about keeping utah out of statehood. and unless we see a transformative supreme court opinion which may happen coming especially from the california
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cases, um, it's still within state control. >> host: sarah gordon, you have a forthcoming book called "the place of faith." where did you get interested in the subject of law and religion? >> guest: well, i became deeply interested when i was thinking about applying to graduate school, and i was torn. did i want to go to seminary or to law school? and for family reasons, my husband wanted to relocate to connecticut, i wound up in law school rather than in seminary. and was delighted when i discovered that i could do a joint degree with the divinity school at yale and thought i had been trading off one interest against the other and discovered thanks to the availability of interdisciplinary training that i could actually combine my interests. and so i started in around 1982.
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i'm in my 0th year -- my 30th year of working in this field and find myself still fascinated, still intrigued. and dedicated to thinking deeply about the relationship between law and religion. >> host: where was this picture from on the cover of "the spirit of the law"? >> guest: oh, this is outside the united states supreme court, and it was taken on a day that a challenge to the pledge of allegiance -- not the requirement that students say it, but the insertion of the words "under god" into the pledge of allegiance which happened, actually, in the 1950s in -- part of the cold war pushback against communist atheism. and this is a bishop of a small denomination actually from poughkeepsie, new york, there praying for the protection of,
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um, a public acknowledgment of god outside the supreme court on the day the case was argued. and behind her you see two guards standing, um, looking far less dramatic than she does. i don't know if you can see, but she is actually weeping as she prays. and it's a very dynamic picture. i was, i was thrilled to see it on the cover. >> host: professor gordon, some of the cases that we hear about today include nativity scenes, ten commandments. is there a national standard yet on nativity scenes and ten commandments and where they can be displayed? [laughter] >> guest: there are many national standards. i think sometimes they disagree with each other. the basic rule seems to be that if it's just the ten
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commandments, that violates the establishment clause. but if a nativity scene or the ten commandments or a me mother rah are combined with other things illustrates not just religious commitments, but broad commitments of the american people, then they have a far better chance of surviving. and the other thing that does seem to happen is if they've been there for a long time, if they're part of historic architecture or in a museum, for example, exhibited for the beauty of the art as well as the message, then that's also probably okay. >> host: what, if any, supreme court cases do you see, do you foresee coming? >> guest: oh, that's a tough question. historians are reluctant to predict. one of the things we see happening across the country is
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schism, especially in major protestant denominations. sidmatic groups -- kissmatic groups, press presbyterians andn down the line are fighting with each other about the sanctity of same--sex relationships -- same-sex relationships. further back but still bitter about the ordination of women. and we see litigation in every state and differing standards applied by differing states as to whether a seceding group can take its property with it or not. we have opinions, um, from south carolina, california, virginia, massachusetts, connecticut. i could go down the line. and these are very high-ticket items, churches -- a lot of real
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estate involved that is worth many tens of millions of dollars each. the episcopal church, for example, spending many millions of dollars every year just on lawyers' fees. um, so these are difficult questions, and they are affecting very longstanding denominations across america. these are tough questions. >> host: sarah gordon is a professor of constitutional law and history at the university of pennsylvania in philadelphia and the author most recently of this book, "the spirit of the law: religious voices and the constitution in modern america. ". >> guest: thank you so much. >> you're watching booktv, nonfiction authors and books every weekend on c-span2. >> two familiar faces to regular c-span and booktv watchers, norm orrin steven and thomas
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mannen. their most recent book, "it's even worse than it looks: how the american constitutional system collided with the new politics of extremism." mr. ornstein, very quickly, what's the premise of your book? >> guest: first, i have to say, peter, that we've been with c-span since the beginning, and i've got pictures in my office on the fifth anniversary of c-span which was a very long time ago. >> guest: and i was on the panel. [laughter] >> guest: with a very young newt gingrich among others. [laughter] a very thin newt gingrich, too, but that's a different story. this is a book really about the reality that in 43 years that the two of us have been immersed in the politics of washington from one end of pennsylvania avenue to the other, we have never seen it this dysfunctional. the disfunction is at a critical mass, and we felt we had to speak out about how the problem is, as the book says, even worse than it looks. it never looks good. and we have to talk about who's
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at fault and what we can do to get out of it. half the book is about how we can get out of this mess. >> guest: the argument, basically, is twofold. one, we have now polarized political parties internally, homogeneous, very much at loggerheads much like parliamentary parties, ve innocently oppositional. but they have to work in a constitutional system that's based on separation of powers and checks and balances. the mismatch between our parties and our governing institutions is problem number one. problem number two which is the toughest thing for us to say and for many people to hear is that the parties are not equally implicated in this. we have something called asymmetric polarization in which the republican party has in
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recent years become almost a radical insurgency, quite prepared to repeal a hundred years' worth of public policy. so we don't know how to cope with the situation when both of our parties are not operating in the mainstream, and the book is written to help people understand why this is happened and what we can do about it. >> host: now, wasn't there a time, though, that the democrats were the party that was asymmetrically out of balance with the rest of the nation? >> guest: oh, yeah. and can that's been true many times in history. most recently in the late 1960s, you know, over vietnam and other issues. but you could go back to the 1890s which was the last period of dramatic polarization like this when the democrats were off the rails on the left. you know, we come out of these terrible problems, but it can
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take a decade or more, and we don't think we have of a decade or more. so there's a sense of urgency in what we wrote. and a bluntness, frankly, tahas not been characteristic of a lot of our work. but we feel it was necessary. >> host: thomas mann, did the 2012 elections clarify anything? >> guest: by all appearances it was a status quo election returning us to the division of power; obama in the white house, democrats in control of the senate, republicans of the house. but appearances can be deceiving and in this case are. the most important reality of the election is that the republican effort to oppose anything and everything proposed by obama almost like a parliamentary party was not rewarded. taking the debt ceiling hostage was not rewarded, calling the
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obama health care plan -- which was their own only a few years earlier -- socialism was not reward withed. rewarded. that means they have to begin to rethink themselves and, importantly, democrats will not automatically embrace the same tactics in opposition. so i think that was the important change that creates a new dynamic not that's going to solve our problems. there's going to be no sitting around the campfire in washington making nice to one another. but the possibility now exists for a real effort and a successful effort to deal with our most pressing problems. >> host: two familiar washington faces, thomas mann and norm ornstein. "it's even worse than it looks." this is booktv on c-span2.
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>> is there a nonfiction author or book you'd like to see featured on booktv? send us an e-mail at booktv@c-span.org or tweet us at twitter.com/booktv. >> host: and now joining us again on booktv is senator rand paul. his second book, "government bullies." senator, who are the bullies? >> guest: well, all throughout your government. there's 41 different agencies who carry firearms now in the government. and you say, well, i don't mind the police or the fbi. well, the department of agriculture has a s.w.a.t. team. the fish and wildlife have a s.w.a.t. team. in fact, the fish and wildlife raided gibson guitar with guns drawn, took all their computer equipment and their wood and then didn't let 'em know what they were accused of for a year. but then when they final aaccused them of something, it was breaking a foreign regulation. a law in india they were accused
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of breaking and penalized in the u.s. for breaking in india. those are the kind of stories we write about. >> host: how come you haven't heard about that before? >> guest: some of them you have heard. one of them's the case of john and judy selling bunnies in a little town in missouri. they were fined $90,000 for having the wrong permit. the government said, hey, you can pay on our web site $90,000, but if you don't pay, in 30 days you'll owe us $3.1 million. this is the kind of stuff that your government's doing to bully people, and we frankly think it needs to stop. they're doing the same with confiscating people's land and saying you can't build on it because it's a wetland even though there is no water or stream or pond on the land. >> host: so as a senator, what can you do to change policy? >> guest: we've looked at some of these things, and we've now constructed legislation to try to fix them. so like on the wetlands we say
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the clean water act says you can't discharge pollutants into navigable waters. i don't have any problem with that. but your backyard is not a navigable water, and dirt is not a blew tax. so we try to -- pollutant. so we try to redefine the clean water act to make sure we're not putting people in prison for putting clean dirt in their backyard. and that's what's been happening. a woman in southern mississippi got 84 months in federal prison without parole for putting clean dirt on her own land. >> host: senator, when you talk to your colleagues about these incidents, what do you hear? >> guest: some are horrified. about eight of them, who signed on and cosponsored my bill to try to fix it, the other 92 i'm not sure what they're thinking about. but when you tell the american people how the government's harassing, abusing and even imprisoning people for selling raw milk, you can go to an amish farmer, some of these amish farmers have been arrested and threatened with jail because they're selling mil to their
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neighbors -- milk to their neighbors. >> host: senator paul, will you be taking these issues nationwide? >> guest: we're going to be talking about it everywhere anybody will listen because we think government has gotten out of control, government's run amok, and government's become a bully, and someone's got to stand up to a bully. >> host: november 2012, postelection, what did the 2012 elections clarify for you? >> guest: boy, that we as republicans need to do something to grow as a party. we're in danger of becoming a dinosaur the we don't -- if we don't figure out what people want out on the west coast, new england, around the great lakes. they're solid blue. and until we figure out what people want, we're not going to win again as a party. >> host: what do you think they want? >> guest: i think they are conservative, they think we should balance our budget, but i also don't think we should be at war everywhere all the time. i think they want a little more tolerant policy as far as putting people in prison for possession of marijuana. i think they'd like to see more
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local judges take care of that, less prison time. i'm not in favor of encouraging people to use marijuana, but i also don't think we should be putting people in jail for it either. >> host: now, this is your second book. we did a long form interview on your first book. you can watch that at booktv.org, just click rand paul into the search function. the premise of that first book? >> guest: the first book was the tea party goes to washington. it was about the tea party or movement, i think it was an extraordinary movement, probably the biggest movement to happen in politics in our country in 40 years. a lot of people were showing up, hundreds of thousands of people showed up at rallies. and it really transformed the way we think about things in the sense that people began to question whether or not the law that was passed by washington, obamacare as one big example, whether laws were constitutional, whether the constitution gave the government the power to do certain things. this hasn't come up really since